The Supreme Court expanded remedy in case of the defective housing, on July 6th, 2007.[1] The ruling stated that the plaintiff could sue damage compensation to the constructor even if the housing was not in the condition of danger of collapsing.
Law
A purchaser can sue damage compensation to a seller based on civil code (art. 570, 566) when the house is defective. The civil code does not ask the quality of defect that is serious defect concerning structure or foundation of housing; if a purchaser can not attain the purpose of transaction, he can sue damage to the seller. However, the lower court decisions tend to limit the case where a purchaser sues damage compensation.
Case
The claimants purchased 9 floors apartment from individual in 1990 at JPY 562,000,000. After inhabiting there from 1994, they noticed some defects in the apartment: cracks in wall; water leak; unsteady handrails. They sued payment of JPY 562,000,000 as damage to the construction company and the designer based on tort law (art. 709). The apartment was secondhand and therefore they could not sue the seller based on the provision stipulating responsibility of assurance of defect (art. 566, 570) that was supposition of new building.
Lower courts decisions
The Ohita District Court approved the claim of plaintiff and ordered the payment of JPY 74,000,000 to the defendants. However, the Fukuoka Appeal Court overturned the district court decision: even if there were defects in the housing, the contractor or the designer did not immediately owe the obligation of damage to the third parties based on tort law; as the requirements of compensation, the illicit of their practices were to be significant;(i) they constructed the building under the malicious intention to infringe the purchaser’s interest; (ii) the defects of building infringed the moral; or (iii)the defects of building were so serious that those gave threat to society. Eventually, the court concluded neither both the constructor and the designer had not such harmful intention to the purchaser nor the apartment was not in the critical condition.
Supreme Court decision
However, the Supreme Court ruled that the interpretation of tort law in the original court was wrong: the building was used by inhabitants, workers and visitors (“inhabitants”), and there were other buildings and roads neighbor the building; the building had to be equipped with the basic safety as the inhabitants, neighborhoods and pedestrians would not suffer injuries on their lives, bodies and properties; therefore, the designer, the constructor and the supervisors (“ constructors”) should perform their duty of care attaining the building to have sufficient safety not to injure the third parties;The ruling said that when the handrails of balcony were unstable or defective, there were possibilities for inhabitants to be injured by falling down even if they used those handrails in usual. In conclusion, the ruling approved that if the building was lack of basic safety to be equipped in the building, the constructors should take responsibility to compensate damage and there was no reason why damage compensation was limited in the case where illegality was significant; if the building was lack of basic safety and therefore the inhabitants suffered injuries on their lives, bodies or properties caused by the building defect, the constructors should compensate those damages except the case where the purchaser got the property under the recognition of the defect; in other words, the defects to be compensated were not limited to the subtraction or building frame.
Evaluation
The decision is helpful for the consumer relief, because it admits the possibility of damage even if the defect is not concerning structural safety. Basically, a consumer is worried about whether the defects are related the fundamental safety or not, even if the defects can be found only on surface on the apartment. But, who can know it? It is impossible for ordinary consumers to find internal and structural defects by imperfections on surface in building.Consumers need a lot of time and expense to investigate those defects. Therefore consumers might give up their claims to desist in generally, only enduring part amendment of defects on surface of the apartment. In addition, it is also difficult for a consumer to prove the negligence of the constructor or designer except the case where the failure is based on the design defect. Our domestic product liability law[2] is not applied the housing. The law says “the term “product” as used in this Act shall mean movable which is manufactured or processed.” (art. 2(1)).
